Bill C-45 (Historical)

An Act to amend the Criminal Code (criminal liability of organizations)

Criminal Code

[Lorne Nystrom, NDP, Regina—Qu'Appelle, SK]

It would die on the Order Paper for the third time if that were to happen.

Bill C-45 is a step in the right direction and we should work at committee stage to achieve the amendments that would clarify some of the issues I have raised in my comments today.

For instance, the bill should include a clause stating the exact test to be used when assigning liability to a corporation, a director or an officer personally. Those are the kinds of things that have to be done. We have to clarify the role and the responsibility of the parent corporation and its criminal responsibility. If none exist, then we must be mindful that actions taken against a corporation might be successful but may not in fact hold the primary offender to task. These are the things that I believe we have to do. In the end, we have to make sure that we can hold large corporations in our country responsible in a legal way in terms of the civil courts and in terms of the criminal law for any negligence that might have caused an unsafe working place and caused injury or death on the job.

Twenty-six people were killed in May 1992 in Westray. As I said at the beginning of my comments, their families and the people of that community have worked hard to change the law. We have now come a fair way over 11 years, but this bill has died on the Order Paper a couple of times so I appeal to members of all parties in this House to make sure it is a priority.

I do not know what the Prime Minister's plans are, and the member for LaSalle--Émard may not even know what the Prime Minister's plans are, but there is a possibility that come the eleventh of November the House of Commons may adjourn, and it may not come back again until February, with a new prime minister. I hope the government House leader and the other House leaders will make sure that if this is a short session one of the bills that passes in this session will be this bill on corporate responsibility. That is the least we can do as a testimony to those who died in Westray and a testimony to those who have fought so hard to make corporations responsible for any criminality or negligence in the workplace.

[Lorne Nystrom, NDP, Regina—Qu'Appelle, SK]

Mr. Speaker, I want to say a few words on Bill C-45 today. It is an important piece of legislation regarding corporate accountability and corporate criminal liability.

The bill comes from the disaster in 1992 at Westray mine in Pictou County, Nova Scotia. I looked at the Westray story, the first volume of the Richard commission when the report was tabled back in 1997. On the front page there is a quote from a French sociologist, the inspector general of mines in France back in the 1800s. He said “The most important thing to come out of a mine is the miner”.

Over the years we have seen many tragedies around the world and in this country and many people have died because of unsafe working conditions in mines. Many times the company that owns the mine, the directors and senior management team who make the decisions are not held responsible or liable for what has happened, for the human suffering, for the people who have died and for the people who have been injured.

Regarding the bill before the House today, I want first of all to commend the families who have put a lot of pressure on the federal Parliament and other parliamentarians to make sure we have legislation that addresses the issue of corporate responsibility. I also want to publicly acknowledge the work done by the trade union movement, particularly the steelworkers, in terms of lobbying for the legislation before the House.

I also want to put on the record that two members of my caucus, the member for Halifax and the member for Churchill, both had private members' bills that were discussed in the House. They were very instrumental in promoting the idea of doing something about corporate criminal responsibility for directors and for senior management teams of companies in this country.

Finally, throughout the process, which included a private member's motion by the now leader of the Conservative Party, the justice committee tabled a report in the House of Commons. In November 2002 the government responded and on June 12, 2003 Bill C-45 was tabled in the House.

I want to go over some things which may be a bit technical but which are important in terms of analyzing the bill. I want to say at the outset that we offer support in principle, as does the steelworkers union, to the bill before the House. We will be moving amendments in committee and arguing for changes to make sure we tighten and strengthen the bill at committee stage.

At the outset Bill C-45 attempts to provide a modern sentencing regime for corporations and other organizations. By exposing the decision makers to the consequences of their actions, the legislation represents a step forward in corporate accountability. There is now a body of law that has been extensively developed to assign civil liability for various regulatory offences and torturous acts. Often these means of redress are only available to government, creditors or shareholders, but not for the average worker, the average consumer, the average Canadian. That is where I hope the legislation would be a positive thing in the years that lie ahead.

The proposed legislation brings Criminal Code provisions in line with civil law liability by making corporations, the directors and officers of those corporations, responsible for their activities and for those of the representatives of the management of the company. This translates into greater accountability because decision makers will be obliged to undertake a more rigorous supervision and control over the actions of their employees and their agents, which we hope will prevent disasters such as that which we saw in Westray in Pictou County, Nova Scotia.

These Criminal Code amendments would also create greater accountability for corporations, because judicial action against corporations is not limited to one's financial relationship with the corporation. Instead, the crown would be able to prosecute a corporation on behalf of the public for wrongful conduct which, in its absence, would be absorbed by the public market. We must look carefully into what the legislation does in order to keep the parent companies accountable. That is something new in terms of what is in the legislation.

One thing to keep in mind is that there is a fine line to be walked between accountability and the public interest. For example, sometimes it would not make sense to indict a corporate director or other people in corporate management and impose massive criminal fines if those fines meant having to wind up a company which employs 500 people to meet those liabilities.

It is important to note that in a situation where a corporation is only competitive because of its low operating costs which were achieved only at the expense of worker safety, for example, a sweatshop, it may be in the best interests of the public to completely liquidate the company.

These are decisions that have to be made by the courts. We must not be afraid to wind up a company and that is at the discretion of the judiciary, and it is our job as legislators to message such a situation to the public. It would not make sense to impose a criminal fine for a negligent act that damaged the homes of a community if those fines are not going to be used for rebuilding those homes in that community.

The legislation or the courts should understand that there are broad mitigating circumstances to be considered in sentencing. These circumstances should include things like how widely held securities are, how many employees the company has, how many people depend on the operation of the company for a job, for taxes, and how many institutions or public services the company supports.

What I mean is that we have to pick the proper forums for our legal battles. It does not make sense to assign criminal liability where civil liability offers a better solution. If someone has been harmed by the negligent actions of a corporation, I think most people would want compensation and restitution. This can only be achieved in many cases through civil litigation. In some cases the director may well have to be the person directly responsible for the conditions that led to the negligent activity. In these cases, justice in the court of public opinion would only be served by incarceration.

We must be clear that both options need to be possible in order to achieve the maximum social good. That being said, I must be clear on the fact that public opinion often has a very short memory. Justice must first and foremost be served for the family who has lost a spouse, or a family who has lost a brother or a sister and now has to figure out how to care for the children or the family without the companionship, without the support, and yes, without the salary of the mother, the father or the brother or the sister.

Bill C-45 addresses this concern by adding section 732.1 to the Criminal Code whereby a judge may order the offender to pay restitution to a person for any loss or damage suffered as a result of the offence, or the judge may order the corporation to establish policies to prevent further offences. This section has an added benefit whereby anyone who cannot afford to take civil action against a corporation could be awarded restitution through the criminal prosecution of the offender.

I would be interested to see how this section would operate and we would have to find this out at committee stage. For instance, can a victim petition the court for a restitution order during criminal proceedings or is it solely at the prosecutor's discretion? It is curious to note that the section uses the term “person” as opposed to “persons”. I hope the legislation contemplates that more than one person could be affected by an offence.

There are many questions and concerns about this legislation as well. The legislation makes corporate negligence a criminal offence. However in law, negligence has nothing to do with intent. The civil test for establishing negligence lies on the balance of probabilities, whereas the criminal test in general is beyond a reasonable doubt. Would criminal negligence have to be determined on the balance of probabilities or on the question of reasonable doubt? Again this has to be determined at committee stage.

Corporate gross negligence should usually fall under the jurisdiction of both civil and criminal courts. Determining those tests will be outlined by the court. One can only hope this legislation will establish new avenues that will allow the courts to make the best possible use of the civil and criminal systems to deliver the broadest possible form of justice to the workers of Canada.

Where do civil claims stand in line against criminal fines? If there is a civil claim and a criminal fine, where does the civil claim stand in line against the criminal fine?

For instance, would a court order take priority over the claims of unsecured creditors, such as those of employees, secured creditors such as banks, or victims? For instance, if a civil court orders a corporation to pay a million dollars to a victim for a negligent act, a criminal court has fined the company a million dollars for the same act and the corporation has only enough to meet one order, then who will the court see is going to get paid first, the victim? Or do they share the awarded fine? I would not want to see the victim's damages jeopardized by the criminal court order, especially if the order is against a faceless corporation that cannot physically enter a prison anyway.

One can hope that this law exposing corporations to criminal liability would not deflect attention from the reality of the situation. A corporation is made up of shareholders, officers, employees and the assets of that particular company. The only people it makes sense to punish are the directors and officers, because in the end they are the decision makers. However, a director can hide behind a corporate name if the court is satisfied that it does not need to pierce the corporate veil in order to assign corporate liability to the directors personally.

But the point of the legislation is accountability. It is not enough to hold an office building responsible when the managers are the people who should be responsible.

One can hope that the opportunity to assign criminal liability would not reduce the diligence of regulators and litigants in civil courts, where there is a stronger incentive to make directors personally responsible as opposed to making the corporation responsible.

The legislation should be approved in principle as a positive step forward in terms of corporate responsibility, but the key thing is that this is just one tree of a larger forest. This piece of legislation is not the be-all and end-all. It must be complemented with more practical and responsive forms of redress, be they civil, criminal or regulatory in nature. By developing a more coherent cross-discipline regime, true accountability can be attained, because what we are really dealing with is a stack of issues that make up the whole.

One should keep in mind that the point of punishment is accountability and helping out the people who have been the victims. Criminal liability does not always meet those objectives because imprisoning an officer or making a corporation pay a fine to the Crown does not do anything to ease the hardships faced by the victims. In the end it is the victims who have to be compensated. Where a wrong has been committed, it is the victims who must have the compensation. Civil court, in that case, is really the most appropriate place to get justice for victims.

Certainly the principle of the bill is a good one and it is going in a certain direction: toward improving the law of our country. At second reading we certainly support the bill before us, but I think we have to work closely with our friends in the trade union movement and with other workers to maintain the political momentum for the bill. As it stands now, the justice committee is swamped and may not even give the bill the priority it deserves. Ultimately Bill C-45 could die on the Order Paper if this session of Parliament is not a long one.

[Inky Mark, Canadian Alliance, Dauphin—Swan River, MB]

Mr. Speaker, it has been a while since I have been in the House and I am certainly glad to be back.

I am very honoured to speak today on behalf of the Progressive Conservative Party on Bill C-45 proposed by the Minister of Justice, which is an act to amend the Criminal Code regarding the criminal liability of organizations.

Bill C-45 amends the Criminal Code to establish rules for attributing organizations with criminal liability for the acts of their representatives. It also purports to establish the legal duty of persons directing work which will ensure worker safety.

Clause 15 of the bill sets out the framework for courts to consider when sentencing organizations and also provides conditions for court imposed probations.

It is very important that those people who are giving the orders are held accountable for a lot of the things that happen in any organization. The Westray mine example demonstrates that liability should go right to the top. In fact, it should start at the top.

A number of aspects of the bill are very similar to the private member's motion tabled by the member of Parliament for Pictou—Antigonish—Guysborough. It began as Motion No. 455 and then changed to Motion No. 79 before it was passed, having received overwhelming all party support.

I realize that many of the issues of workplace safety fall under provincial jurisdiction. There are corporations in this world that hold no concern for their employees. They do not see them as people. They only look at the bottom line. I believe those days are gone. It is the responsibility of government to ensure that all people are held accountable for their actions.

The attempt of the bill, and of the PC motion which preceded it, is to remind government and parliamentarians that the House and all provincial legislatures throughout the country must do everything in their power to ensure that there is a safe workplace for those who engage in labour activity. If it costs a lot of money and input into making sure that the environment is safe, if that is necessary, it needs to be done.

We need safety in mines but also in farming, manufacturing industries and fish plants, wherever employees work. In any occupation where danger may be encountered, the workplace environment should be safe.

It is a daunting task to put into law provisions that will encourage those in the industry to abide by these legislative initiatives to ensure safety.

I am hopeful that the bill will help to ensure that those with the implicit responsibility for ensuring safety will abide, leading to a higher level of accountability among executives, CEOs and the management in companies. They need to be held accountable if they make decisions to place convenience or practicality over safety in the workplace.

The Progressive Conservative Party has concerns about the safety of employees. Too often we are accused of speaking only for the management of the corporate world, but the House can be sure that we are always concerned about how the corporate world operates and that it is responsible for its actions.

The bill will make corporations liable for permitting unsafe working conditions. For example, the maximum fine for a summary conviction offence for an organization has been raised from $25,000 to $100,000. As well, offences committed on behalf of a corporation by managers or people in positions of authority will also become offences.

Furthermore, directors and officers of corporations who participated in, knew of, or ought to have known of the act or omission that constituted the offence would be considered guilty of an offence and liable on conviction and penalty as if they personally had committed the offence. In other words, the courts shall make a determination based upon the individual's experience, duties, et cetera. No longer can those in management say that they did not know what was happening. By admission, omission is no longer a valid excuse. We are now putting in place rules and policies to make sure that the environment is safe for all people.

Although I do have some concerns regarding Bill C-45, I do commend the government for finally presenting a bill that attempts to deal with the problems in the criminal justice system and give a more clear direction to prosecution of these very often complex and cumbersome cases.

I must stress that the fundamental responsibilities for the safe operation of an underground coal mine or any industrial undertaking will rest with owners and managers.

Westray management, starting with the CEO, was required by law, along with good business practices and good conscience, to design and operate a mine safely. If this legislation had been in place, perhaps the story of Westray would have been different than it was. The significance of their failure cannot be overstated or mitigated. Others were also abdicating their responsibility, and thus the issue of shared responsibilities, which can be encompassed in both the criminal and civil context, was reflected in the recommendations from Mr. Justice Richard's report.

Business executives and corporate executives need to be accountable, and thus should be prepared to seek input from front line workers. This would allow employees to be part of management's schemes when it comes to safety. They should be relied upon to lend their knowledge and create the maintenance of a safe work environment. That is something that was also acknowledged in the report.

It is not a politically popular thing to say, but there was an element of culpability and responsibility on the workers themselves. This has to be taken into the entire context of what legislative change should occur to ensure that accountability and responsibility are held by all.

Businesses must also ensure that their employees are adequately supervised and constantly updated on safe work practices. That is a very important point. It is one thing to make the environment safe. It is another to make sure that the employees themselves are well trained, skilled, and know the safety policies that are put into place to ensure that they work safely.

It stands to reason that when weighing business goals, for example meeting production deadlines versus those of safety, shutting an operation down obviously has huge financial consequences, yet the human element should have outweighed the business demands. That is a new direction which the corporate world is following, that is, that the safety of people's lives comes first before the bottom line.

In closing I would say that business executives must promote and nurture safe work ethics and have an open and approachable attitude toward their employees. No one ever wants to feel the effect we felt in Plymouth with the Westray mine.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, I am pleased to initiate, on behalf of the Bloc Quebecois, the debate on Bill C-45 sponsored by the Minister of Justice and dealing with criminal liability of organizations.

Hon. members will recall that this bill was introduced at the very end of last spring's session, when the leadership crisis within the Liberal Party of Canada was at its peak.

At that time, people may have wondered just how far the government might go to get its bills through. The answer to that question provided today is pretty revealing.

It seems that the government will try anything it can to curb controversy, in order to keep a lid on the tensions within the Liberal caucus and the divisions within the government. As a result, it will opt as much as possible for passing legislative measures that will gain the support of the House and not stir up any debate.

That said, the odds are pretty good that the government leader will attempt to minimize the untenable situation his party finds itself in, and it is possible that we will not sit beyond November 7, the date of the coronation of the member for LaSalle—Émard as leader of the Liberal Party of Canada.

In the meantime, however, it is important for us to do our jobs conscientiously, because the Liberals do not seem to be on top of their game, and they have lost sight of our primary role: to legislate.

Coming back to the bill of concern to us today, I will state at the outset that the Bloc Quebecois will be supporting this amendment to the Criminal Code, and will also be in favour of its prompt passage in order to address an important ethical aspect in the role of corporations and organizations.

The objective of Bill C-45 is, in fact, to carry out an indepth review of the principles of law governing the liability of corporations and other associations of persons for all criminal offences.

It must be kept in mind that Bill C-45 is the outcome, first and foremost, of the efforts of ordinary members of this House and not an initiative by the government, which has put off taking action for a long time, too long we might say.

Before offering a historical overview, it would be worthwhile making reference to the findings of the public inquiry into the causes of the explosion that took place at the Westray mine in Nova Scotia.

This explosion, which took place several years ago, as hon. members will recall, left 26 men dead. The public inquiry revealed that the tragedy was in large part caused by the negligence of the bosses, who had turned a blind eye to some serious safety problems.

Thus, as I said, the government's inertia in enacting legislation is balanced by the tenacity of some members in trying to get substantial legislative changes passed so that such a situation cannot happen again, or, at the very least, there is a form of criminal recourse if a similar unfortunate tragedy were ever to take place.

The purpose of these private members' bills was to establish and clearly set out, under certain circumstances, the criminal liability of corporations for the errors of neglect or criminal intent committed by their directors or employees, and to create a new category of offence in the Criminal Code, with respect to companies that fail to provide a safe workplace for their employees.

Similarly, in June of 1999, a motion was brought forward to amend the Criminal Code and other federal legislation so that the directors and officers of a company would be held responsible for workplace safety.

At that time, the Bloc Quebecois supported the motion, but when Parliament was dissolved the motion was deferred. Since then, similar motions have been presented three times to the House, but the government, unfortunately, has dragged its feet until now.

Many similar bills have been introduced in recent years, and I think it is important to remind the House of the position taken in 2001 by my hon. colleague for Laurentides, with respect to Bill C-284.

In fact, the Bloc Quebecois supported passage of Bill C-284, but we also pointed out that in Quebec, an organization already exists, called the Commission de la Santé et de la Sécurité au Travail, or CSST, whose mandate is to ensure the safety of employees in the workplace.

Similarly, also in relation to that bill, we maintained that it was essential to adopt the proposal so as, legally, to establish a method of redress and to strengthen the Criminal Code, in order to prevent loss of life among workers.

The Standing Committee on Justice and Human Rights also held public hearings on this matter in the spring of 2002; it recommended and I quote:

That the Government table in the House legislation to deal with the criminal liability of corporations, officers and directors.

The government's concrete response to the Standing Committee on Justice and Human Rights and the ongoing efforts of members have resulted in Bill C-45, of which we are proud. We regret the delay, but the adoption of Bill C-45 will be our just reward.

This bill to amend the Criminal Code before the House contains eight key points that I want to list for my hon. colleagues and those interested in this matter.

The main changes pertain, first, to the use of the term “organization”, rather than “corporation”. This will broaden the definition, thereby affecting more institutions.

Second, companies can now be held criminally liable for the acts of their employees who are not necessarily in positions of authority or, as they are commonly referred to, the “higher ups”.

Third, the material aspect—the act of committing a crime—and the moral aspect—the intent to commit a crime, the mens rea —of criminal offences attributed to companies and other organizations no longer need be the work of the same person.

Fourth, the category of persons whose acts or omissions can constitute the material aspect, meaning the criminal act which can be attributed to a corporation or any other organization, is broadened to include all employees, representatives or contractors.

Fifth, with regard to crimes resulting from negligence, generally referred to as criminal negligence, the fault can now be attributed to the organization to the extent that one of the senior officers of the organization can be charged with the offence.

In the case of deliberate crimes, an organization can now be held responsible for the actions of its senior officers to the extent that a senior officer is party to the offence, directs other employees to commit an offence or, knowing that an offence will be committed by other employees, does nothing to prevent it.

It is important to clarify, nonetheless, that the acts or actions of senior officers must be committed with the specific purpose of procuring an advantage for the organization.

Similarly, the bill is designed to place the onus explicitly on anyone who undertakes to direct the work of other employees to take all reasonable steps to prevent bodily harm to these employees.

Finally, the bill also contains provisions for establishing general sentencing principles and probation conditions in respect of the organizations.

Before going any further in our deliberations on Bill C-45, it should be noted that in our justice system it is essentially jurisprudence that determines the conditions under which a company can be held responsible for a criminal offence.

In criminal offences that require culpable intent or intent to commit a crime, companies are only responsible for acts or omissions by people who may be said to constitute the directing mind of the company. In order for a company to be found guilty of an offence with culpable intent, it must be shown that the individual who materially committed the criminal act in the performance of his duties had implicitly or explicitly been given the authority to write policies for the company and to oversee their implementation.

For each situation, the court must decide whether the individual who committed the criminal act in the performance of his duties can be deemed the directing mind of the company. This is commonly referred to as the identification theory.

Ultimately, we are entitled to believe and maintain that, based on this approach, individuals who are the directing mind of the company personify the intentions of the company.

I could also enter into a technical argument justifying our support of Bill C-45, but I will settle for merely pointing out that this bill defines an organization as including a public body, body corporate, society,company, firm, partnership, tradeunion or municipality. Thus the term organization also includes any association of persons created for a common purpose, which has an operational structure and holds itself out to the public as such.

The main intent of the bill is to broaden the category of individuals whose actions and intentions may engage criminal responsibility of the organizations they represent. Therefore a differentiation will be made between two groups of individuals, namely representatives and senior officers, whose conduct may constitute a criminal offence attributable to an organization.

Thus a representative includes essentially any person who works on behalf of an organization or is affiliated with it, which generally means a director, partner, employee,member, agent or contractor of the organization. In this view, a senior officer means a representative who plays an important role in the establishment of the organization's policies or is responsible for managing an important aspect of the organization's activities.

The effect of this new designation will be to change the present state of the law by introducing new elements to the theory of identification.

It is also proposed to add sections to and expand existing sections of the Criminal Code to take into account in sentencing a reality peculiar to organizations. The same goes for the definition of specific conditions of probation applicable to organizations.

Once passed, Bill C-45 will increase from $25,000 to $100,000 the maximum fine for an organization under summary conviction or convicted of lesser offences.

There is currently no limit set on the maximum amounts of fines for criminal acts or more serious offences, a situation that the proposed legislation does not address. However, the bill specifies factors the court will have to take into account in setting the amount of fines.

For example, the courts will have to take into account aggravating factors such as the degree of planning and any financial advantage realized by the organization as a result of the offence or, conversely, mitigating factors such as efforts made by the organization to reduce risks.

Before concluding, I want to reiterate the support of the Bloc Quebecois for the principle of Bill C-45 at this stage of the legislative process. The committee stage will also provide an opportunity to consider further the proposed legislation and, above all, ensure once and for all that there are no loopholes organizations can use to abdicate their responsibilities.

I remind the House that the current state of the law forces us to establish a regime of criminal responsibility for businesses that is effective and takes into account the differences between an individual and an organization. I also look forward to hearing what my hon.colleagues have to say on this matter. I remain convinced that we will be able to pass this legislation with diligence for the benefit of our fellow citizens thanks to, among other things, the evidence we will be hearing in the Standing Committee on Justice and Human Rights.

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, I am pleased to rise today to discuss this bill, an act to amend the Criminal Code (criminal liability of organizations).

The incident that took place in the Westray Mine near New Glasgow, Nova Scotia in 1992, in which 26 miners were killed, resulted from gross negligence on the part of managers, directors and workplace inspectors. It was a tragedy that could have been prevented. It was a crime that should never have taken place.

I think it is appropriate that we have this discussion to determine whether that action on the part of the corporation and its directors in fact should result in the criminal penalties being proposed here.

The inquiry released in November 1997 by Mr. Justice Peter Richard made the recommendation for the federal government to institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporations and suggested that the government introduce amendments to ensure that corporate executives and directors are held accountable for workplace safety and health.

In the last session of Parliament, a private member's bill to deal with this issue, Bill C-284, was approved in principle by all parties in the House of Commons, including the Canadian Alliance. However, at that time we cited concerns about the legislation and maintained that certain constitutional issues must be addressed before the bill could be passed.

In May 2002, the justice committee referred the subject matter to the Department of Justice in order to draft legislation in accordance with the objectives of the bill. The result is Bill C-45.

Bill C-45 accomplishes three main goals: first, it makes changes to the Canada Labour Code to protect against workplace hazards; second, through changes to the Criminal Code, if employers and managers do not take reasonable measures to protect employee safety and harm results, the organization could be charged; and third, it expands conditions for liability.

I fully agree that the issue of corporations providing safe working conditions for employees must be addressed by the federal law. I agree that it is not sufficient that we simply have provincial legislation in place. However, I would at the same time caution members of the House against passing legislation that could be legally or constitutionally flawed. If the legislation is in fact put to use in the future, let us not put the families of future victims through the agony of a trial only to find out that there are legislative or constitutional flaws that make the entire legal proceeding under these provisions defective.

It should be noted that one defence that previously existed under the Criminal Code has been repealed by this legislation. For example, section 391 of the Criminal Code states:

Where an offence is committed under section 388, 389 or 390 by a person who acts in the name of a corporation, firm or partnership, no person other than the person who does the act by means of which the offence is committed or who is secretly privy to the doing of that act is guilty of the offence.

Without this defence, concerns have been raised that a person could be held responsible for an offence even if he had no knowledge of the commission of that offence. While the motivation behind the bill and its predecessors are obviously well intentioned, and I think strive to meet an existing need, we must carefully consider the implications of these amendments. That is why we need to be careful in the context of our constitutional framework to ensure that they do in fact comply with the requirements of our Constitution.

In further discussion on the bill it must be remembered that the one of the principal reasons that businesses choose to incorporate in the first place is to protect shareholders and directors from personal liability arising from the activities of the business. I am not suggesting that simply because individuals have arranged their affairs in such a way as to avoid personal responsibility it should excuse criminal conduct. Criminal conduct should be punished whether it is done directly by individuals or indirectly through the mechanism of the corporation.

Executives, directors or other officers and employees of the corporation presently do not and should not have the benefit of immunity from criminal liability. Under our current Criminal Code provisions, they are legally accountable for their own personal wrongdoing. As well, corporations can be held criminally liable in their own right. In cases of offences of absolute or strict liability, a corporation would be subject to penal liability for unlawful acts or omissions of such persons who, because of their position or authority in the corporation, may be said to constitute the directing mind of the corporation.

However, this bill expands further conditions of liability, which must be carefully studied once the legislation is referred to the committee.

Another matter to consider is that this legislation could create concerns among corporations, be they large or small, successful or struggling. I am not suggesting that we jeopardize the health or safety of our workers at the expense of economic growth and jobs, but we do have to be mindful of the impact that these amendments may have if the legislation is not legally or constitutionally sound.

Furthermore, some businesses may have difficulties in attracting viable candidates to sit on a board with the prospect of such Criminal Code penalties. Smaller or struggling companies would be at a particular disadvantage if such standards for accountability were universally applied.

The question that must be asked is whether these provisions will dissuade from managing corporations precisely those who could provide the appropriate guidance to strengthen the health and safety of the workers. If we pass legislation, will it discourage those individuals in our society who would make responsible directors and managers from in fact directing and managing those corporations? If by our legislative action we frighten those individuals, we then leave corporations in the hands of those who do not care about the safety of workers and that is a situation that we need to avoid. Given the civil liability that has attached to directors, will this increase the difficulties that many corporations find in attracting qualified and competent directors?

I think everyone here wants a safe workplace. They want viable economic units that create jobs and keep the engine of wealth moving in this country. We need to balance these concerns against some of the proposals being made here. I am not in a position yet to say whether these amendments in fact do that in an inappropriate way. On a reading of the legislation, I find much to commend it.

We do not want to create the situation where we dissuade competent people from becoming the directing minds of corporations. We want to encourage competent people who exercise sound skill and judgment to continue working through the vehicle of corporations to ensure that jobs are preserved and created in Canada.

Again, that is an issue we need to bear in mind given the difficulty that many corporations today may have in attracting directors to their boards.

In summary, I think it is important to be careful that this legislation does not open up the door to penalties for people who may not have acted with criminal intent. That, I think, is the major issue the House needs to consider. Our Constitution does not support imposing criminal penalties where there is no criminal intent. If we pass legislation that is constitutionally flawed, it does not help the families of those workers who may face a tragedy in the future. I want to hear from witnesses at the justice committee before formally proposing any amendments to the legislation.

I would like to note that the member for Kootenay--Columbia and other Canadian Alliance representatives have done a substantial amount of work in this area. They have met with representatives of the Westray victims' families and other parties around Antigonish. In fact, the member for Kootenay--Columbia will be addressing this legislation and will share some of the insight he has gained.

I want to say that the Canadian Alliance supports the intent of this legislation and we look forward to working proactively to overcome any identified legal and charter concerns that may be present in the proposed legislation.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, just before the break we were talking about the issue of probation as it related to Bill C-45 and I would like to carry on with that thought.

Probation is possible for a corporation but it is virtually never imposed. We believe there may be circumstances where the court wants to ensure as best it can that the corporation will change its ways and commit no further crimes and recognizes that a heavy fine would cripple the corporation's efforts to reform.

In those circumstances probation makes sense for the corporate offender. Accordingly, we propose that a court be able to order an organization to establish policies to reduce the likelihood of further criminal activity, to communicate those policies to employees, to name a senior officer to oversee their implementation and to report periodically to the court.

We propose as well to give the court the power to order the organization to inform the public of the offence, the sentence and remedial measures being undertaken by the organization. Not only will this allow the public to decide whether it wishes to continue to do business with the organization after the conviction, we believe it could also be a powerful deterrent. No corporation would want to risk having to take out ads in the various media to tell Canadians it has been criminally negligent or it has been committing fraud.

Finally, we are proposing that the maximum that can be imposed on a corporation for a summary conviction offence be quadrupled to $100,000 from its $25,000.

The changes that we are proposing will give Canada a regime for determining the criminal liability of organizations and for sentencing them in a manner that is appropriate for the complex business arrangements that are common today.

I am proud to present Bill C-45 to the House for its consideration.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker,I am pleased to begin the debate on Bill C-45, an act to amend the Criminal Code concerning the criminal liability of organizations. The bill will transform the principles contained in the government's response to the 15th report of the Standing Committee on Justice and Human Rights looking into provisions in the Criminal Code. The standing committee's report was the result of hearings that were prompted by the debate on Bill C-284 sponsored by the hon. member for Churchill.

Fundamentally the bill has its origins in the tragic deaths of 26 miners in the Westray mine explosion in May 1992. I will not review in detail the lengthy and ultimately fruitless criminal proceedings that followed the investigation of the explosion. All members are aware that the company that operated the mine, and two of its executives, were charged with manslaughter. The trial judge ordered a stay of the charges because of problems with disclosure of evidence by the Crown. Although the appeal courts overturned that decision, the prosecution decided it could not go forward.

The Government of Nova Scotia appointed Justice K. Peter Richard to conduct an inquiry into the disaster. The inquiry itself was delayed by legal proceedings but when hearings got underway, the evidence disclosed, in Justice Richard's own words, “a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect”. Justice Richard ultimately made 74 recommendations to enhance workplace safety. These recommendations dealt with such issues as training, ventilation, mine safety and the like.

The United Steelworkers of America, to their credit, have been the untiring champions of the families of the Westray victims. They urged Justice Richard to recommend fundamental reform of the criminal law as it affects workplace safety and the responsibility of corporate directors and officers for maintaining a safe workplace.

Justice Richard concluded that this was beyond his mandate but he did make recommendation 73:

The Government of Canada, through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and should introduce in the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held properly accountable for workplace safety.

In this Parliament all members of the standing committee have given careful consideration to both the issue of the role of the criminal law in promoting workplace safety and the general rules that should govern the liability of corporations and their officers and directors.

A discussion paper setting out the issues and reviewing the evidence of other countries, which had been prepared by the justice department, was provided to the committee. The committee heard from officials of the justice department and other experts. It heard moving testimony from victims and relatives of victims of industrial accidents. The 15th report of the committee recommended “that the government table in the House legislation to deal with the criminal liability of corporations, directors and officers”.

Clearly all parties in the House felt that it was time for fundamental reform in this area. The government in its response to the report reviewed the evidence that had been heard by the committee and agreed on the need for reform. The government also concluded that there was no perfect system in other countries that Canada could simply copy. The report therefore set out the principles that would guide the drafting of a made in Canada approach to the problem of corporate crime.

However, just as reform of the criminal law was not the primary focus of Mr. Justice Richard's report, this bill is not the primary response of the Government of Canada to the Westray tragedy. The government has already acted decisively to promote workplace safety because prevention of accidents is always better than prosecutions after a tragedy.

In 2000, amendments to part II of the Canada Labour Code established a number of improvements to occupational health and safety in workplaces under federal jurisdiction. Three fundamental employee rights were established: the right to know about hazards in the workplace; the right to participate in correcting those hazards; and the right to refuse dangerous work. The role of workplace health and safety committees and of policy health and safety committees was strengthened.

Bill C-45 builds on those changes by proposing to include in the Criminal Code a new section, section 217.1, which provides that everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task.

The importance of having such a duty in the Criminal Code is that if there is a breach of that duty, wanton and reckless disregard for the life or safety of people, and injury or death results from that breach, a person can be convicted of criminal negligence causing death which is punishable by up to life imprisonment, or criminal negligence causing bodily harm which is punishable by up to 10 years imprisonment.

Members will note that this duty is not specific to corporations. Many corporations already have a similar duty. The Canada Labour Code for example provides in section 124 that “every employer shall ensure that the health and safety of work of every person employed by the employer is protected”.

As well, a duty of care to workers may exist in provincial legislation or under the common law. Breach of these duties can currently lead to criminal charges where there is reckless disregard for the safety of others.

Bill C-45, if adopted, will have its greatest impact on the liability of corporations and other associations of persons for all criminal offences. The definitions of “representative” and “senior officer” and the rules for attributing criminal liability for negligence offences and other offences set out in proposed sections 22.1, 22.2 and 22.3 will modernize the approach to criminal liability of all corporations.

Members will have noted that although the standing committee held hearings on corporate criminal liability, the bill refers to “organizations” which is defined broadly to include all major participants in the economy and all associations of persons created for a common purpose, having an operational structure and holding itself out to the public as an association.

There has been a great deal of creativity shown by corporate lawyers in developing new structures, for example, limited liability partnerships and joint ventures. Quite simply we want to ensure the Criminal Code applies to every organization of persons without any artificial distinctions based on how those persons chose to structure their legal relations.

In practice of course, corporations are likely to be charged far more frequently than other forms of association because of their dominant role in Canadian society. The proposed rules for attributing criminal liability to an organization are necessarily complex because the criminal law requires proof of both the commission of a prohibited act and that the person had the necessary mental state.

Since organizations can only act through individuals, the fundamental problem with which the law has struggled is to decide whose acts are to be considered the acts of the organization and who in the organization has to have the necessary guilty mind for the organization itself to be considered as having a guilty mind.

Until now, Parliament has been content to have bodies, corporate societies and companies included as persons and to leave it to the courts to develop the tests for determining when they are criminally liable. At first, the courts were reluctant to find that a corporation could commit a crime, but case by case they have built up rules for holding corporations accountable for crimes carried out in their name and for their benefit by their employees and officers.

With respect to the first question, namely, whose acts should be considered the acts of the organization, we propose that the acts of representatives are the acts of the organization. Representative is defined broadly so that it includes not just officers and employees, but also agents and contractors. As long as they are acting within the scope of the authority given them by the organization, their actions should be the actions of the corporation.

As for whose guilty mind should be the guilty mind of the organization, the government in its response stated that it found the Supreme Court approach too narrow because of its insistence that a directing mind had to have executive decision making authority on matters of corporate policy.

Through the definition of senior officer, we propose to broaden who can be the directing mind by including, in addition to those who would already be so considered, a person who has an important role in establishing policy rather than having to have the ultimate power to make policy, and a person who is responsible for managing an important aspect of the organization's activities even if that person has no policy making authority whatsoever. The proposed change reflects the way that large modern corporations are organized.

While the courts would still have to decide in each case whether a particular person is a senior officer, I believe the proposal clearly indicates our intention that the guilty mind of a middle manager should be considered the guilty mind of the corporation itself. For example, the manager of a sector of a business such as sales, security or marketing, and the manager of a unit of the enterprise like a region, a store or a plant, could be considered senior officers by the courts.

An organization would be responsible for crimes based on negligence where the acts and omissions of its representatives, taken as a whole, are negligent and its senior officers showed a marked departure from the standard normally expected in the circumstances.

In a tragedy such as Westray, it may not be possible to find a single representative of a corporation who was criminally negligent. The deaths may have resulted from a series of actions and omissions by many representatives. Even though no single individual might be convicted of a criminal offence, it may be possible for the corporation operating the mine to be criminally liable. For example, if three employees simultaneously turned off three separate safety systems and death resulted, these employees might not be subject to criminal prosecution because they each believed that turning off one system would not endanger anyone because the other two systems would still be in operation. However, the corporation might be charged with criminal negligence.

For the court to convict the company that operated the mine, the Crown would have to show that the management fell well below the standard of care that would be expected in the circumstances. In making this determination, the court would have to consider industry practice and procedure. If other companies have a system to ensure that no more than one safety system could be turned off at a time, the court could well conclude that the accused corporation had fallen far below what was reasonably to be expected and convicted.

For all other criminal offences, we are proposing that the organization be criminally liable whenever a senior officer with intent to benefit the organization commits the prohibited act, or uses representatives lower down in the organization, or outsiders to commit the act, or fails to act on knowledge of criminal activity by its representatives.

An organization should not be able to avoid criminal liability by turning a blind eye to indications that its representatives are committing crimes.

All of these changes reflect the positions taken by the government when it tabled its response. At that time the government indicated that the Criminal Code should provide more guidance for the courts when they impose sentences on a corporation, but we made no specific proposal.

The Criminal Code contains principles of sentencing and aggravating factors for judges to consider, but mainly they are applicable to the individual. For example, it is an aggravating factor to abuse a spouse or a child in committing the offence.

We are seeking, through the proposed new section 718.21, to assist the courts in determining an appropriate sentence for an organization. Of course, jail is not an option for a corporation. Therefore, in practice the court has to decide how heavy the fine to impose.

In determining that fine the court should consider the moral blameworthiness of the organization through such factors as the profit it made and the planning involved in the offence. It should also consider the public interest. Except in unusual circumstances, a fine should not be so high that the company is bankrupted and morally blameless employees lose their jobs.

Just as the criminal record of an individual is very important in determining sentence, the court should take into account any previous criminal convictions and convictions for regulatory offences of the organization and its personnel involved in committing the offence.

Finally, rehabilitation of the offender is always important. An organization may have shown that it is determined not to commit further offences by imposing penalties on managers involved in the commission of the offence or by paying restitution to victims.

We are also proposing to encourage the courts to innovate by setting out optional conditions of probation geared to the corporate offender in the proposed new subsection 732.1(3.1). Probation is possible for corporations, but it is virtually never imposed.

We believe there may be circumstances where the court wants to ensure as best it can that the corporation will change its ways and commit no further crimes.

[John McCallum, Liberal, for the Minister of Justice]

moved that Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations), be read the second time and referred to a committee.

Parliament of Canada Act

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, it is great to be back to make a couple of speeches on the first day of the autumn session of Parliament. I would like to welcome everyone, especially the new pages. I would like to assure my constituents in Yukon that the new pages have already completed the most important part of their training and fully understand that Yukon is the best constituency in the country.

Before I go into details on the amendment to Bill C-34, the previous speaker discussed the general legislative climate this fall. I would like to follow up on that because it is a very aggressive and detailed legislative agenda and I hope people do not lose track of that.

There are many bills that we are in the midst of bringing forward and must continue with such as, Bill C-34, which we are talking about now; but also Bill C-13, assisted human reproduction; C-22, family law; C-38, marijuana; Bill C-45, which I hope to talk about later today concerning the Westray bill for worker safety; Bill C-46, market fraud; Bill C-19, resource taxation; Bill C-6, first nations specific claims resolution for the economic development of first nations; archives legislation; bills related to child pornography and the sex offenders registry; citizenship; as well as urgent veteran's needs.

And then of course all the committees are working. The finance committee will be doing its pre-budget work. There are always important issues in foreign affairs. The health committee has to work on the West Nile virus and the agriculture committee on mad cow disease.

This is a very detailed agenda and continues to be one of the most productive legislative agendas we must get through. I hope people do not get sidetracked in the House or in the media about other things or go off these important changes that affect real people in Canada.

I am pleased to address the NDP amendment at report stage with respect to Bill C-34, a bill which would establish an independent ethics commissioner reporting to Parliament. The amendment proposes the deletion of clause 38 of the bill in its entirety.

This clause would change subsection 2(2) of the Federal Courts Act by adding references to both the ethics commissioner and Senate ethics officer so that the activities of the ethics commissioner and Senate ethics officer are not subject to review by the Federal Court, whether by judicial review or by appeal.

The Parliamentary Secretary to the Government House Leader has already explained why the NDP amendment is inappropriate and should be rejected. I want to comment on the need to preserve the House's privileges in this area.

The House and its members have traditionally been responsible for their ethical conduct. This is a tradition we in the House have had since Confederation and which we share with other parliamentary democracies.

Let me set out how the bill preserves this tradition of parliamentary privilege and ensures the House's accountability to Canadians.

Clause 38 amends a provision in the Federal Courts Act which itself exists for greater certainty to ensure that the activities of Parliament and parliamentarians are excluded from review by the Federal Court. Given the role of the ethics commissioner and the Senate ethics officer in dealing with the conduct of parliamentarians, it is logical that those provisions be extended to these two officers of Parliament.

This clause is but one of several provisions in the bill intended to ensure that the House, and not the courts, continues to have the ultimate responsibility, and accountability, for the ethical conduct of its members. For instance, the bill would create an ethics commissioner as an officer of the House.

Section 72.05 includes express recognition that the ethics commissioner “enjoys the privileges and immunities of the House of Commons and its members in carrying out his or her duties and functions”. This section also provides express recognition that the bill does not in any way limit the powers, privileges, rights or immunities of the House or of its members.

Further, Section 72.12 would ensure that the ethics commissioner and his or her staff could not be taken to court in respect to their official activities. This section also acknowledges that the commissioner and his or her office are protected by the privileges and immunities accorded to Parliament as an institution. Similar provisions have been made for the Senate ethics officer throughout the bill.

Collectively, these provisions, including clause 38, are essential if we are to create an ethics commissioner who, in respect of matters pertaining to members of the House, is to function as the legislation requires and is accountable to the House.

In this regard, the bill states that the ethics commissioner's functions in relation to members would be carried out “under the general direction of any committee of the House of Commons that may be designated or established by the House for that purpose”.

Canadians expect members of the House to establish and abide by ethical rules. This is only proper because as parliamentarians we are ultimately accountable to the public, both for our own ethical behaviour and for the steps taken by the ethics commissioner as an officer of Parliament.

In our view, the proposed amendment would seriously undermine Parliament's long standing privileges, the ability of the House to properly assign duties and functions to the ethics commissioner, and the House's ultimately accountability for the ethical conduct of its members.

It would undermine the ability of the House to govern its affairs and would open up the possibility that the courts might be called upon to second guess or review the actions of the ethics commissioner.

Canadians have every right to expect that the House would create and enforce the highest ethical guidelines for members. They know and expect that the House and its members are ultimately accountable for the ethical code it will implement. They do not want parliamentarians to transfer this responsibility to the courts. Accordingly, I would encourage members of the House not to support the amendment.

I want to conclude by again referencing the previous speaker's speech when he commented on the tremendous potential leadership awaiting in the wings for the country and how popular that is with Canadians. We will have a great transition to even more exciting times, but as I was saying at the beginning of my speech I hope that the important things that affect the lives of Canadians, which I mentioned and the number of bills that we will be dealing with throughout the fall, winter and spring, would not be lost in the simple transition of politics.

Criminal Code

[Martin Cauchon, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations).

(Motions deemed adopted, bill read the first time and printed)

International Transfer of Offenders Act

[Wayne Easter, Liberal, Solicitor General of Canada]

moved that Bill C-33, An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, be read the second time and referred to a committee.

Mr. Speaker,I rise today to speak at second reading of Bill C-33, the international transfer of offenders act. I am proud to sponsor the bill for a number of reasons, in particular because of the public safety and humanitarian objectives that the bill will further.

The current Transfer of Offenders Act came into force in 1978 following a United Nations meeting where member states agreed that international transfers were desirable because of increasingly greater mobility and the need for countries to cooperate on criminal justice matters.

The Transfer of Offenders Act authorizes the implementation of treaties between Canada and other countries, including multilateral conventions for international transfer of offenders. The Transfer of Offenders Act and the treaties serve essentially a humanitarian purpose. This is important. Imagine for a moment that a citizen of Canada is incarcerated in a country whose language and culture is foreign to him or her. Add to this an unfamiliar environment, a lack of contact with family and friends, food that is incompatible with the person's dietary requirements, unsatisfactory health and sanitary conditions and/or difficult conditions of incarceration.

It goes without saying that these factors increase the pains of imprisonment for offenders, and the hardships they face often translate into hardships for their families at home.

But there are other reasons for the legislation. The Transfer of Offenders Act serves an important public protection purpose. Offenders incarcerated in foreign states may be deprived of the opportunity to rehabilitate themselves in the absence of treatment programs in those countries, in the absence of a structured parole system, and in the absence of direct contact with family and friends in their home community. As a result, the chances of long term reintegration of these offenders, and ultimately of better public safety, are greatly reduced. This holds true even when offenders are incarcerated in a country with social standards and customs relatively similar to Canada's.

The Transfer of Offenders Act ensures that the offender does not escape justice. There is no free ride. When Canadian offenders are transferred to Canada to serve the remainder of the foreign sentence until warrant expiry, they arrive here under the supervision of the Correctional Service of Canada or of provincial correctional authorities who oversee their gradual and controlled reintegration into society. I think we can all agree that this is far better than simply deporting offenders back to Canada at the end of their sentence without any controls or supervision.

There is no doubt that most states wish to cooperate with one another on matters of criminal justice. All states attempt to deter prohibited conduct through the enforcement of criminal laws and penalties. Modern technology and global travel have led to increased opportunities for the commission of crimes in countries other than one's own. Therefore, states have a common interest in cooperating to prevent and respond to criminal conduct. This actually protects the sovereignty of states by preventing offenders from escaping justice, and this is exactly what the transfer of offenders scheme allows states to do.

Every year, about 85 Canadians are transferred to Canada under a treaty or a multilateral convention for the transfer of offenders. Since 1978, only technical amendments have been made to the Transfer of Offenders Act. Since then, more substantive issues have been identified. Policy issues relating to international transfers have expanded due to Canada's greater experience with treaties and legislative amendments brought about by the Corrections and Conditional Release Act in 1992, Bill C-41 on sentencing in 1995, and Bill C-45 on sentence calculation reform in 1996.

As a result, my department consulted with 91 private sector and government agencies and then conducted a comprehensive review of the Transfer of Offenders Act. This resulted in proposals to amend the legislation that would reflect traditional international treaty principles, close identified gaps, ensure consistency with other legislative provisions, and improve efficiencies.

In recent years, statements of purpose and principles have been added to federal legislation for several reasons: to provide a clear indication of the intent of the legislation; to ensure parliamentary endorsement of the approach and policy behind legislation; and to aid in the interpretation of provisions.

Bill C-33 would do exactly that. It would specify that the purpose of the new international Transfer of Offenders Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling them to serve their sentences in the country of which they are citizens or nationals.

Over the years, Canada has promoted key principles to guide international transfers of offenders, and in particular, the notion of the offender's voluntary consent to the transfer. This notion is based on the traditional humanitarian objectives of treaties. The prospects for an offender's successful institutional adjustment, rehabilitation, and community reintegration would likely be compromised if an offender were forced to transfer against his or her will. Foreign states may also be less inclined to approve a transfer on humanitarian grounds if the offender has not willingly consented. This is why Bill C-33 would reflect this important principle.

The bill also contains the important principle that offenders are to be informed in advance of the terms and manner in which their sentences will be completed in Canada. It would also require that a foreign offender requesting a transfer to his or her home country be provided with information from that foreign state about how the sentence is to be served in that state. This would ensure that the offender's consent to the transfer is truly informed.

The current Transfer of Offenders Act makes provisions for the transfer to Canada of young offenders committed to custody, but not for young offenders on probation. This is inconsistent with the provisions which allow for the transfer of adult offenders both on probation and in custody. Bill C-33 would close this gap by providing for the transfer of young offenders on probation in the new act. Moreover, there is no provision in the current act that allows for the transfer of Canadian children. Bill C-33 would close that gap as well by providing for the transfer to Canada of children less than 12 years of age. The bill also specifies that children transferred to Canada would not be detained by reason of the foreign sentence. They would be dealt with in accordance with the law of the receiving province or territory. By widening the net, so to speak, the bill would further the humanitarian objective of the act.

The current act provides that Canada may enter into a treaty, international agreement, arrangement or convention only with recognized foreign states. The dissolution of the U.S.S.R. and Yugoslavia highlights the problem of dealing with territories or jurisdictions not yet recognized as foreign states. Several years may pass before the jurisdictions are formally recognized as foreign states. In the meantime, Canada cannot enter into a treaty with them. Canadians incarcerated in these jurisdictions and offenders from these foreign entities do not have access to the international transfer process. There may also be instances where a treaty does not exist between Canada and a foreign state or where one has been negotiated but ratification is still years away.

However there are compelling reasons to return an offender to the home country such as harsh conditions of detention. Moreover, some foreign states may be less inclined to consider a formal arrangement with Canada but willing to negotiate less formal arrangements for the transfer of offenders on a case by case basis.

To provide access to international transfers in such circumstances, Bill C-33 would authorize the negotiation of administrative arrangements with a foreign state or a non-state entity. This would make the legislation more responsive to international developments. It would also allow Canada to bring its citizens home but always under the supervision of Canadian correctional authorities to oversee the offenders' gradual and safe reintegration.

The development of transfer agreements is beneficial to most offenders. To date, a limited number of states are bound by treaties and conventions on the transfer of offenders but the numbers are increasing and this is highly desirable. The main drive toward the international transfers of offenders is humanitarian. Serving a sentence in a foreign state increases its severity. An offender in this situation is likely deprived of contact with family and of the opportunity to reintegrate into society. This is not in the interests of the offender, the family or indeed the community.

Enforcement of a foreign sentence by the receiving state benefits the offender and both states involved. Objections to the effect that the enforcement of foreign sentences will infringe Canada's national integrity or that the foreign sentence will be improperly enforced in Canada are unfounded. These objections are fuelled by fear of the unknown rather than by informed policy reasons. The government and hon. members of the House should not allow such objections to stand in the way of the humanitarian effort that underlines Bill C-33.

Canada's Transfer of Offenders Act and associated treaties and conventions has been successful in achieving their goal and continue to be a permanent feature of the international relations between our country and many others. The progress made in this area is considerable. Since 1978, approximately 1,000 Canadians have been brought to Canada and more than 100 foreign offenders have been returned to their country of citizenship. The numbers are not large but that is because the notion of transfer of offenders is still relatively new and much is still being learned.

Let me say in closing that there is a clear need for legislative flexibility in Canada to further the humanitarian objective of transfers. There is a clear need for international cooperation in matters of criminal justice and there is a clear need for public protection with the safe and gradual reintegration of offenders into society.

Bill C-33 would respond to those needs by incorporating traditional international treaty principles, closing identified gaps and ensuring consistency with other legislative provisions. Bill C-33 would further contribute to these objectives by expanding the class of offenders who may be transferred and of jurisdictions with which Canada could enter into transfer arrangements.

For all these reasons, I urge the hon. members of the House to support Bill C-33 and see it through to completion.